United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1821) 1 Shaw 16

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

1 st Division.

No. 5.

Et è contra.

Sir Wm. F. Eliott, Appellant.—Fullerton—Brougham

v.

George Pott, Respondent.—Dean of Fac. Ross—Mackenzie

Mar. 14. 1821.

Lord Gillies.

Subject_Entail — Lease. —

Held,—1.—Reversing the judgment of the Court of Session, that a prohibition in an entail to dispone, fortified by irritant and resolutive clauses, deprived an heir of power to grant a lease for 77 years on a grassum, although the word alienate was not employed; and,—2.—Affirming a judgment, that a lease of 77 years, with a grassum, was an alienation.

By the entail of the estate of Stobbs, executed in 1719 by Sir Gilbert Eliott, the prohibitory clause declares, “That it shall not be leisome nor lawful to me, the said Sir Gilbert Eliott, nor to any of my heirs and successors foresaid, to sell, and I hereby bind and oblige me and them not to sell, annalzie, wadset, dispone, dilapidate, and put away the said lands, baronies, and estate, or any part or portion thereof, heritably and irredeemably, or under reversion, (except in so far as the faculties above written do extend,) nor contract or ontake debts thereupon, or grant bonds or other securities therefor, nor do or commit any other facts, deeds, or delicts, civil or criminal, whereby the said lands and estate may be anyways apprised, adjudged, forfaulted, evicted, or affected, nor to infringe, alter, or innovate this present substitution, or course of succession, in defraud and prejudice of the subsequent heirs of provision above mentioned, conform to the order and substitution above specified: Neither shall it be lawful to me, nor to any of my heirs of provision foresaid, whether male or female, to suffer the said lands, baronies, and estate, or any part thereof, to be adjudged or apprised for debts to be contracted, but shall be obliged to redeem the same within the space of eight years after deducing or leading any such diligence.” The irritant and resolutive

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clauses, which immediately follow, are in these terms:

“And if I, or any of the said heirs, whether male or female, successive, shall contravene the premises, or do any fact or deed in prejudice hereof, by the said heirs-female not using the sirname of Eliott, and my arms and title, or by the said unmarried heirs-female not marrying a gentleman who and their heirs shall not use the same, and my arms and title, as above, or by the said heirs female, and they and their husbands and children, not using the said sirname, arms, and title, as aforesaid; or who, whether male or female, and I shall dispone the said lands and estate, or any part thereof, or contract debts, or commit any other fact or deed, during their respective marriages, or in favour of their respective husbands, wives, and children, (except in so far as is above provided,) whereby the said lands and estate may be evicted or affected in manner foresaid, or shall permit the same to be adjudged or apprised for any such debts and deeds, and not redeem the same within the limited time foresaid, after leading thereof; and if I, or any of the persons and heirs foresaid, whether male or female, shall infringe or alter the succession and substitution foresaid, then, and in any of these cases, not only shall all such deeds and contraventions to be done by me and the said heirs male and female, or any of them, during their respective marriages, so far as the samin may burden and affect the said estate, and infringe or alter the succession, be ipso facto null and of no effect, by way of exception or reply, without any sentence of declarator to follow thereupon, but also I shall lose my right of liferent, and the other persons, doers of said deeds, and committers of said contraventions, or any of them, shall amit their right of succession, and be debarred from said lands and estate; and all the infeftments and other rights thereof, shall from thenceforth expire, and become null and void, as if they had never been granted; and the same shall accresce to the next immediate person to succeed to the said estate, and so forth successive in case of divers contraventions, and that free of all debts, deeds, and delicts done, contracted, or committed by the contraveners; and it shall be leisome to the next succeeding heirs to use and prosecute any legal way or method competent for establishing the right thereof in their persons, or in the persons of the remanent heirs of provision foresaid, to succeed to them in manner above expressed.”

Under this entail, the late Sir William Eliott, father of the appellant, entered into possession of the estate. On the 20th of March 1794, he granted a lease of the farms of

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Penchrise and Langside, consisting of between 4000 and 5000 acres, for 77 years, at a rent of £285, (which was restricted during his life to £200,) and on payment of a grassum of £2904: 15: 9. Sir William having died in 1812, his successor, the appellant, brought an action for reducing the lease, as being an infringement of the restrictions of the entail. In defence, it was pleaded, 1. That the irritant and resolutive clauses of the entail were so loosely, so inaccurately, and so unintelligibly worded, as to render the entail unavailable against third parties contracting with the heirs in possession; 2. (which was the main defence,) That supposing the irritant and resolutive clauses to be effectual to the extent of the acts of contravention there enumerated, they could not invalidate the lease; because, although that enumeration mentioned the act of disponing, yet it omitted that of alenating, under which alone, in the absence of any express limitation of the power of letting, the lease could be struck at as contrary to the restrictions of an entail; and, 3. That even if the act of alienating had been mentioned, a lease for 77 years was not an alienation. To this it was answered, 1. That although there was no doubt an error in grammar in the expression in the irritant clause, ‘who, whether male or female, and I shall dispone said lands,’ &c., yet the meaning was sufficiently clear, viz. that if the heirs, whether male or female, should dispone the lands or contract debts, then the irritating part of the clause should take effect. 2. That the terms dispone and alienate are generally used as synonymous, and that it appeared from various acts of Parliament, decisions, and institutional writers, that the term dispone was employed in reference to the granting of feus, long tacks, assedations, and alienations; and as it was made use of in the irritant and resolutive clauses, it was sufficient without the addition of the word alienate; and, 3. That a lease of the nature of that under reduction was truly an alienation.—Lord Gillies, on the 27th of January, and 19th February 1813, repelled the reasons of reduction, and assoilzied; and on the 17th of December he found that “the lease in question having been granted in consideration of a grassum, and for a period of 77 years, is to be considered as an alienation, and that alienations are prohibited by the entail of the estate of Stobbs, but that the irritant and resolutive clauses in the same deed of entail contain no reference to the specific prohibition against alienating, such as is necessary to render the same effectual against third parties;” and therefore adhered to the previous interlocutors. To these judgments the Court, on the 17th of

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February and 10th March 1814, also adhered, ^* but found no expenses due.

Both parties appealed—Sir William Eliott in so far as the Court had found that the deed of entail was not sufficient to prevent alienations,—and Pott so far as they had found that the lease was an alienation, and had not awarded to him his expenses. The House of Lords “Ordered and adjudged that the said interlocutors of the Lord Ordinary, of the 27th of January 1813, and the 19th of February 1813, be reversed: And it is farther ordered and adjudged, that the said interlocutor of the Lord Ordinary, of the 17th of December 13, be reversed, except so much thereof as finds that the lease in question having been granted in consideration of a grassum for a period of 77 years, was to be considered as an alienation, and as finds that alienations were prohibited by the entail of the estate of Stobbs: And it is further ordered and adjudged, that the said interlocutors of the Lords of Session of the First Division, of the 17th of February and 10th of March 1814, be reversed; and the Lords find, that, according to the true construction of the deed of entail of the estate, the prohibition to dispone extends to the lease in question, and that the irritant and resolutive clauses in the said deed of entail do so refer to the specific prohibition to dispone, as to render the same effectual against third parties; and therefore sustain the reasons of reduction of the lease in question: And it is further ordered and adjudged, that the cross appeal be dismissed this House, and the cause be remitted back to the Court of Session in Scotland, to do therein as shall be consistent with this judgment, and as shall be just.”

Appellant's Authorities.—(2.)—3. Craig, 2. 22; Reg. Maj. 2. 20. and 23; Spott. Prac. p. 306. and 168; Balf. 163. 165; Hope's M Prac. MSS; 3. St. 2. 3. 4; 3. Bank, 2. 1; Kilk. 541; Mack. Ob. James I. P. 2. c. 26; 2. Mack. Works, 487; 1571, p. 36. and c. 39; 1581, c. 101; 1587, c. 111; 1593, c. 180; 1594, c. 211; 1597, c. 235. 236. 237. 239; A. S. July 13. 1620; Feb. 29. 1692; Elliot v. Elliot, May 19. 1803, (15542);—(3.)—Turner, Nov. 17. 1807, (No. 16. App. Tailzie); Malcolm, Nov. 17. 1807, (No. 17. ib.); D. of Queensberry, Nov. 17. 1807, (No. 15. ib.); Turner, Dec. 6. 1811, (F. C.); Welsh, Nov. 12. 1812.
Respondent's Authorities.—(2.)—2. Mack. 487; 2. St. 3. 56; 8. Ersk. 8. 25; Young, Dec. 7. 1705, (15483); Redhaugh, March 11. 1707, (15489); Craig, June 13. 1712, (15494); Baillie, July 11. 1734, (15500); Primrose, Jan. 27. 1734, (15501); Hay, Feb. 9. 1758, (15602); Creditors of Hepburn, Feb. 1758, (15605, Aff.); Bryson, Jan. 22. 1760, (15511); Bruce, Jan. 15.1799, (15539, Aff.); Craig, 340. §12;

_________________ Footnote _________________

* See Fac. Coll. Vol. 1812–1814, No. 166, where it is mentioned, that, “On advising the case, the Eords were perfectly clear that there was no authority for saying that the word ‘dispone’ was equivalent to ‘alienate,’ and thus that the entail in question, which was otherwise silent on that point, did not strike against leases.”

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Hope's M. Prac. 406; 2. St. 3. 38; 3. Mack. 8. 17; 1. Bank. 587. § 149; 3. Ersk. 8. 29; Hepburn, Feb. 15. 1732, Aff.; Campbell, June 17. 1746, (15505); Sinclair, Nov. 9. 1749, (15383); Weir, Nov. 8. 1752, (4314); Nisbet, Nov. 1763, (15516); Case of Tillicoultry, Nov. 1763; Kemp, Jan. 17. 1769, (15528); Stewart, July 8. 1789; Brown, May 25. 1808, (No. 19. App. Tailzie);—(3.)—1449, c. 18; Lord Adv. March 30. 1762, (15196. Rev.); Jordanhill, Dec. 9. 1747, (Elchies' Notes, No. 32. Tailzie); Kilk. 395; 2. St. 9. 26.

Solicitors: J. Richardson,— J. Chalmer,—Solicitors.

( Ap. Ca. No. 11.)

1821